CALDERWOOD & HARKNESS LLP Attorneys at Law 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-7400 Facsimile: (202) 555-7401 www.calderwoodharkness.com
September 26, 2023
Mr. Marcus J. Whitmore Chief Executive Officer Whitmore Aerospace LLC 2400 Dominion Ridge Parkway, Suite 800 Herndon, Virginia 20171
Dear Mr. Whitmore:
1. Purpose and Engagement Confirmation
We are pleased to confirm that Whitmore Aerospace LLC ("Whitmore" or the "Client") has engaged Calderwood & Harkness LLP (the "Firm") to represent it in connection with a bid protest before the United States Government Accountability Office ("GAO"), designated as GAO Case No. B-422187; B-422187.2. This engagement letter (the "Letter") sets forth the terms and conditions under which the Firm will provide legal services to the Client in this matter and is intended to ensure a clear mutual understanding of the scope, responsibilities, and financial arrangements governing the attorney-client relationship.
This engagement has been assigned Firm Engagement Number 1019-00003. All internal Firm correspondence, time entries, billing records, and file materials will be maintained under this engagement number, and the Client should reference this number in any communications directed to the Firm regarding this matter.
The Firm's authorization to proceed with this engagement is based on preliminary discussions between members of the Firm and Donald R. Stokes, Vice President, Government Contracts, Whitmore Aerospace LLC, during which Mr. Stokes conveyed the Client's decision to pursue the protest and authorized the Firm to undertake the work described herein. This Letter formalizes and supersedes any prior oral or written understandings regarding the scope and terms of the engagement.
2. Scope of Representation
The Firm will represent Whitmore in filing and prosecuting a bid protest before the GAO challenging the United States Department of the Air Force's award of Contract No. FA8222-23-D-0193 to Halcyon Defense Systems Inc. ("Halcyon" or the "Awardee") under Solicitation No. FA8222-23-R-0087 (the "Solicitation"). The procurement at issue involves an indefinite-delivery/indefinite-quantity ("IDIQ") contract for advanced infrared countermeasure ("IRCM") pod assemblies, with a total contract ceiling of Three Hundred Eighty-Seven Million Five Hundred Thousand Dollars ($387,500,000) over a five-year ordering period. The contract was awarded through competitive negotiated procedures under Federal Acquisition Regulation ("FAR") Part 15.
The protest is being filed within the ten (10) calendar day post-debriefing deadline prescribed by 4 C.F.R. § 21.2(a)(2), following the enhanced debriefing conducted on September 22, 2023, pursuant to 10 U.S.C. § 3304 (formerly 10 U.S.C. § 2305(b)(6)(A)). The contracting activity is the Air Force Life Cycle Management Center ("AFLCMC"), Sensors Directorate, Wright-Patterson Air Force Base, Ohio 45433. The Contracting Officer of record is Colonel Diane W. Prescott, USAF.
The scope of the Firm's representation in this engagement specifically includes the following:
(a) Preparation and Filing of the Protest Petition. Drafting, finalizing, and filing the initial protest petition with the GAO, including all required certifications, statements of fact, legal arguments, and supporting exhibits.
(b) CICA Automatic Stay. Requesting and, as necessary, enforcing the Competition in Contracting Act ("CICA") automatic stay of contract performance under 31 U.S.C. § 3553(c)(1), including any advocacy before the GAO or the agency to ensure compliance with the statutory stay requirements and, if applicable, challenging any agency override of the stay pursuant to 31 U.S.C. § 3553(c)(2) or (d)(3).
(c) GAO Proceedings. Participation in all phases of the GAO protest proceedings, including but not limited to: filing and advocacy on protective order applications; review of the agency report (including the contracting officer's statement, the legal memorandum, and the production of the agency record); preparation and filing of comments on the agency report; preparation and filing of supplemental comments, as warranted; participation in any alternative dispute resolution ("ADR") conferences convened by the GAO; and preparation for and participation in any hearings conducted by the GAO in connection with the protest.
(d) Protest Cost Claim. In the event the protest is sustained, preparation and submission of a certified protest cost claim on behalf of the Client, including documentation of attorneys' fees and protest-related expenses, in accordance with GAO procedures and 4 C.F.R. § 21.8(f).
The scope of this engagement expressly excludes the following matters, each of which would require a separate engagement letter and agreement on terms:
(a) Any subsequent protest or other proceeding at the United States Court of Federal Claims ("COFC"), including any post-award bid protest action filed under 28 U.S.C. § 1491(b);
(b) Any appeal or challenge to the GAO's decision, whether through reconsideration at the GAO or through any other forum;
(c) Representation of the Client in any re-competition, corrective action proceeding, or proposal revision process that may result from a sustained protest or voluntary corrective action by the agency;
(d) Contract claims or disputes arising under the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101–7109, including appeals before the Armed Services Board of Contract Appeals or the COFC.
Should the Client wish to retain the Firm for any of the foregoing excluded matters, or for any other legal services beyond the scope defined in this Section, the Firm and the Client will negotiate and execute a separate engagement letter addressing the terms of such additional representation.
3. Responsible Partner and Billing Partner
Claudia Merritt is designated as the Responsible Partner for this engagement. In this capacity, Ms. Merritt will have primary responsibility for the overall direction and supervision of the Firm's work on behalf of the Client, including strategic decision-making, quality control, and client communications regarding the substance of the engagement. Ms. Merritt will serve as the Client's principal point of contact at the Firm for matters relating to the prosecution and strategy of the protest.
Ian Blackwood is designated as the Billing Partner for this engagement. Mr. Blackwood will be responsible for all matters related to billing, invoicing, and fee-related communications, including the preparation and review of monthly invoices, the monitoring of fees against the voluntary fee cap described in Section 5.2, and the resolution of any billing inquiries or disputes. All billing inquiries should be directed to:
Ian Blackwood Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-7418
Email: i.blackwood@calderwoodharkness.com
4. Engagement Team
The Firm has assembled a cross-practice engagement team with the expertise and experience necessary to prosecute this protest effectively. The following attorneys and professionals have been assigned to this matter:
Claudia Merritt — Responsible Partner. Ms. Merritt is a partner in the Firm's Banking & Finance practice group. While her primary area of expertise lies in banking and finance, Ms. Merritt has extensive experience in government contracts disputes through cross-practice collaboration and has overseen numerous complex engagements involving federal procurement matters. She will provide overall strategic direction and client relationship management for this engagement.
Ian Blackwood — Billing Partner. Mr. Blackwood is a partner in the Firm's Banking & Finance practice group. He will manage all financial and administrative aspects of the engagement, including billing, budgeting, and fee monitoring.
Lt. Col. (Ret.) Nathan Yardley — Of Counsel, Subject-Matter Lead. Mr. Yardley is Of Counsel in the Firm's Government Contracts practice group. A retired Air Force acquisition officer with over twenty years of active-duty experience, Mr. Yardley possesses specialized expertise in FAR Part 15 competitive negotiated procurements and GAO bid protest litigation. He will serve as the subject-matter lead for this engagement, with primary responsibility for the development of protest arguments, the analysis of the agency record, and the presentation of the Client's case at any GAO hearing. Mr. Yardley's background in defense acquisition makes him particularly well suited to address the technical and procedural issues expected to arise in the evaluation of IRCM pod assembly proposals.
Megan Zhao — Senior Associate. Ms. Zhao is a senior associate in the Firm's Litigation practice group. She will be responsible for hearing preparation, including the identification and preparation of witnesses, the development of evidentiary exhibits, and the drafting of pre-hearing and post-hearing briefs. Ms. Zhao will also contribute to the drafting of the initial protest petition and comments on the agency report.
Alan Burke — Lead Associate. Mr. Burke is an associate in the Firm's Privacy & Data Security practice group. He will handle the International Traffic in Arms Regulations ("ITAR") and Export Administration Regulations ("EAR") compliance overlay issues anticipated to arise in the protest, particularly as they relate to the agency's evaluation of offerors under the ITAR/Export Compliance subfactor of the Solicitation's evaluation criteria. Mr. Burke's expertise in export control law will be critical to challenging any evaluation errors in this area.
Sara Hendricks — Working Associate. Ms. Hendricks is an associate in the Firm's Privacy & Data Security practice group. She will provide research and document review support across all phases of the engagement, including the review of the agency record, legal research on applicable statutes and regulations, and the assembly of supporting documentation for the protest cost claim, if applicable.
This engagement draws on the combined resources of the Firm's Banking & Finance, Government Contracts, Litigation, and Privacy & Data Security practice groups. The cross-practice structure is designed to ensure that all relevant legal disciplines are brought to bear on the issues presented by the protest.
The Firm reserves the right to adjust staffing as the matter progresses, based on the evolving needs of the engagement. The Client will be informed of any material changes in the composition of the engagement team, including the addition or substitution of timekeepers at the partner, of counsel, or associate level.
5. Fee Arrangement
5.1 Hourly Rates
The Firm will bill for its services on a blended hourly rate basis. The applicable blended rates for each category of timekeeper are as follows:
These rates are blended rates reflecting the Firm's standard rate structure for government contracts protest matters. The blended rates are inclusive of all timekeeper-level variations within each category and account for the particular nature and complexity of GAO protest work. The rates set forth in this Section 5.1 will remain in effect for the duration of this engagement, unless otherwise agreed in writing by the parties.
All professional time will be recorded in increments of one-tenth (0.1) of an hour. Each timekeeper will maintain contemporaneous time records reflecting the date, the nature of the work performed, and the time expended. These records will form the basis for the Firm's monthly invoices.
5.2 Voluntary Fee Cap
In recognition of the Client's budgetary considerations and the Firm's desire to maintain a cost-effective and transparent fee structure, the Firm has agreed to a voluntary fee cap of Four Hundred Twenty-Five Thousand Dollars ($425,000) for attorneys' fees (exclusive of costs and expenses) incurred in connection with the scope of representation defined in Section 2 of this Letter.
The fee cap is a ceiling on total attorneys' fees; actual fees will be billed on the basis of hours worked at the applicable blended rates set forth in Section 5.1 and may be less than the cap. The fee cap does not constitute a flat fee, a fixed fee, or a guaranteed minimum; rather, it represents the maximum amount of attorneys' fees that the Firm will bill to the Client for the defined scope of work, absent prior written authorization from the Client to exceed the cap.
The fee cap does not apply to costs and expenses, which will be billed separately as set forth in Section 6 of this Letter and are not subject to any cap.
If, during the course of the engagement, it appears that the fee cap may be approached or exceeded due to unforeseen complexity — including, by way of example, multiple rounds of supplemental briefing ordered by the GAO, extended or multi-day hearing proceedings, the filing of supplemental protests, or the emergence of issues necessitating proceedings outside the current scope (such as COFC-related proceedings) — the Firm will promptly notify the Client in advance and will not incur fees in excess of the cap without obtaining the Client's prior written authorization. Any such authorization will be documented in a written amendment to this Letter or in a separate written communication between the Firm and the Client.
5.3 Billing Cycle
The Firm will issue invoices on a monthly basis, typically within fifteen (15) days following the end of each calendar month. Each invoice will include:
(a) A summary of hours billed by each timekeeper during the billing period, including the applicable blended hourly rate for each timekeeper;
(b) A narrative description of the work performed during the billing period, organized by date and timekeeper, in sufficient detail to allow the Client to evaluate the nature and necessity of the services rendered;
(c) An itemization of all costs and expenses incurred during the billing period, with supporting documentation as applicable; and
(d) A running total of fees and costs incurred to date, together with the remaining balance under the voluntary fee cap.
Payment is due within thirty (30) days from the date of each invoice (net 30). The Firm reserves the right to charge interest on past-due amounts at a rate of one percent (1.0%) per month, or the maximum rate permitted by applicable law, whichever is less, on any invoice balance that remains unpaid more than sixty (60) days after the date of the invoice. The Client agrees to notify the Firm promptly of any billing questions or disputes so that they may be resolved in a timely manner.
6. Costs and Expenses
In addition to attorneys' fees, the Client will be responsible for reimbursement of reasonable out-of-pocket costs and expenses incurred by the Firm in connection with the engagement. Costs and expenses that may be incurred include, but are not limited to, the following:
(a) Expert Consultant Fees. Fees charged by expert consultants retained to support the protest, including technical advisors such as Ridgeline Consulting Group LLC or similar firms with expertise in infrared countermeasure systems, electro-optical sensor technology, or defense acquisition processes. The retention of any expert consultant will be discussed with the Client in advance, and the terms of any expert engagement will be subject to Client approval.
(b) Transcript Costs. Charges for the preparation of transcripts of any hearings conducted by the GAO or depositions taken in connection with the protest proceedings.
(c) Travel Expenses. Reasonable travel expenses incurred in connection with the engagement, including airfare, hotel accommodations, ground transportation, and meals, for travel to the GAO (Washington, D.C.), the agency's offices (Wright-Patterson Air Force Base, Ohio), or other locations for purposes of document inspection, hearings, or client meetings. Travel will be booked in accordance with the Firm's standard travel policies, and the Firm will exercise commercially reasonable efforts to minimize travel costs.
(d) Electronic Filing, Reproduction, and Printing Charges. Charges associated with the electronic filing of protest documents with the GAO, as well as reproduction and printing costs for the preparation of filings, exhibits, and internal working materials.
(e) Courier and Overnight Delivery Services. Charges for courier service, overnight delivery (e.g., Severin Partners LLC, Halcyon Partners LLC), and similar expedited shipping services used in connection with the engagement.
(f) Court Reporter Fees. Fees charged by court reporters retained for hearings or other proceedings, if applicable.
(g) Filing Fees and Bond Premiums. Any filing fees, bond premiums, or other charges required in connection with the protest proceedings or related actions.
Costs and expenses are not subject to the voluntary fee cap set forth in Section 5.2 and will be billed to the Client at actual cost, without markup or administrative surcharge. The Firm will seek the Client's prior written approval before incurring any single cost item exceeding Five Thousand Dollars ($5,000). For cost items below this threshold, the Firm will exercise reasonable professional judgment in determining whether the expenditure is necessary and appropriate for the prosecution of the protest.
7. Protest Cost Reimbursement
If the protest is sustained by the GAO, the Client may be entitled to reimbursement of reasonable protest costs, including attorneys' fees and protest-related expenses, as recommended by the GAO pursuant to its decision and in accordance with 4 C.F.R. § 21.8(d) and (f). Such a recommendation is within the GAO's discretion and typically directs the procuring agency to reimburse the protester for the costs of filing and pursuing the protest, including reasonable attorneys' fees and consultant and expert witness fees.
The Firm will prepare and submit the certified protest cost claim on the Client's behalf, including the compilation and documentation of all attorneys' fees, costs, and expenses incurred in connection with the protest. The preparation and submission of the cost claim is included within the scope of representation defined in Section 2 of this Letter.
Any amounts recovered from the government in connection with a protest cost claim will be applied to offset the Client's outstanding fee and cost obligations to the Firm. However, the Client remains responsible for the payment of all fees and costs incurred under this engagement regardless of whether a protest cost recovery is obtained, the amount of any such recovery, or the timing of any reimbursement by the agency. The Firm makes no representation or guarantee that a protest cost claim will result in full reimbursement of the Client's legal fees and expenses.
8. Client Responsibilities
The effective prosecution of the bid protest requires the active cooperation and participation of the Client. Accordingly, the Client agrees to the following:
(a) Access to Documents and Information. The Client will provide the Firm with timely access to all relevant documents, information, records, and data necessary for the prosecution of the protest, including but not limited to the Client's proposal (technical and cost volumes), the Client's debriefing materials, internal evaluations, correspondence with the Air Force, subcontractor and teaming agreements, and any other materials bearing on the issues in the protest. The Client will use its best efforts to respond to the Firm's requests for information within the timeframes specified by the Firm, recognizing that GAO protest proceedings operate under compressed schedules.
(b) Client Contact. The primary client contact for this engagement will be Donald R. Stokes, Vice President, Government Contracts, Whitmore Aerospace LLC. Mr. Stokes will serve as the Firm's principal point of contact for day-to-day communications, the coordination of document production, and the facilitation of access to Whitmore personnel with knowledge relevant to the protest. All substantive communications from the Firm regarding the status and strategy of the engagement will be directed to Mr. Stokes unless otherwise instructed by the Client.
(c) Notification of Developments. The Client will promptly inform the Firm of any material developments relating to the subject matter of the protest, including but not limited to: any communications received from the Air Force, the GAO, or the awardee (Halcyon Defense Systems Inc.) or its counsel (Kessler, Pratt & Dunaway LLP); any agency actions affecting the status of the contract award or the CICA stay; any media inquiries or public disclosures relating to the procurement; and any changes in the Client's business circumstances that may affect its standing, interest in the procurement, or ability to perform the contract.
(d) Protective Order Restrictions. The Client acknowledges and understands that certain information obtained by the Firm through GAO protective order proceedings — including, without limitation, proprietary and source selection sensitive information from the agency record and the awardee's proposal — may be designated as protected material and restricted to outside counsel only under the terms of any protective order issued by the GAO. Such protected material may not be shared with Client personnel, including Mr. Stokes and Mr. Whitmore, or with any other individual who has not been admitted under the protective order. The Client agrees to comply with all such restrictions and to refrain from requesting access to protected material that the Firm is prohibited from disclosing. The Firm will, to the greatest extent permitted by any applicable protective order, communicate the substance and implications of protected material to the Client in a manner that does not disclose the protected information itself.
9. Confidentiality
All communications between the Firm and the Client in connection with this engagement are protected by the attorney-client privilege and the work product doctrine. The Firm will maintain the confidentiality of all Client information received in connection with this engagement in accordance with the District of Columbia Rules of Professional Conduct, Rule 1.6, and all other applicable rules of professional conduct governing the Firm's attorneys.
The Client is advised that the protections afforded by the attorney-client privilege may be waived by the voluntary disclosure of privileged communications to third parties. The Client should take care to ensure that communications with the Firm are not shared with individuals outside the attorney-client relationship without first consulting the Firm.
Given the nature of the procurement at issue, the Client's facility security clearance at the Top Secret level, and the Client's involvement with technology controlled under the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Parts 120–130, the Firm will implement appropriate information security protocols for the handling, storage, and transmission of sensitive and classified information, as applicable. These protocols may include the use of encrypted communications, secure document storage and transfer platforms, and restricted access controls for Firm personnel handling sensitive Client materials. The specific information security measures will be coordinated between the Firm and the Client's designated security officer, as necessary, to ensure compliance with applicable government security requirements and contractual obligations.
10. Conflicts of Interest
The Firm has conducted a comprehensive conflicts check in connection with this engagement. Based on the results of that review, the Firm confirms that, as of the date of this Letter, no conflicts of interest exist with respect to the representation of Whitmore Aerospace LLC in this matter that would preclude the Firm from undertaking the engagement.
The conflicts check encompassed a review of the Firm's current and former client relationships against the following entities and their known affiliates:
•  Halcyon Defense Systems Inc.
•  Halcyon Analytical Services LLC
•  Marlowe Asset Management Electro-Optics Corp.
•  United States Department of the Air Force
•  Kessler, Pratt & Dunaway LLP
•  Meridian Semiconductor GmbH
•  Pinnacle Precision Manufacturing Inc.
•  Ridgeline Consulting Group LLC
•  Clearwater Surety Corporation
No current representations or prior engagements were identified that would give rise to a conflict of interest under the applicable rules of professional conduct.
The Client acknowledges and agrees that the Firm is a multi-practice law firm that represents a wide range of clients across numerous industries, including the aerospace and defense sector. The Client agrees that the Firm may continue to represent other clients in matters unrelated to this engagement, even if such clients operate in the aerospace and defense industry, provided that no direct conflict of interest arises that would be prohibited under the District of Columbia Rules of Professional Conduct, Rules 1.7 and 1.9. In the event that a potential conflict is identified during the course of this engagement, the Firm will promptly notify the Client and, if necessary, seek the Client's informed written consent to continue the representation or take such other steps as may be required under the applicable rules.
11. Termination
Either the Client or the Firm may terminate this engagement at any time upon written notice to the other party. In the event of termination by the Client, the termination will be effective upon receipt of the Client's written notice by the Firm. In the event of termination by the Firm, the termination will be effective upon reasonable notice to the Client and in compliance with the Firm's obligations under the applicable rules of professional conduct, including Rule 1.16 of the District of Columbia Rules of Professional Conduct.
Upon termination, the Client will remain responsible for the payment of all attorneys' fees incurred and all costs and expenses advanced by the Firm through the date of termination, in accordance with the fee arrangement set forth in Sections 5 and 6 of this Letter. The Firm will issue a final invoice reflecting all outstanding fees and costs within thirty (30) days of the effective date of termination.
Upon termination, the Firm will take reasonable steps to protect the Client's interests, including providing any required notices to the GAO, the agency, or other parties to the protest proceedings, and cooperating with successor counsel to ensure an orderly transition of the matter. The Firm will, upon the Client's request, promptly deliver to the Client or its successor counsel all documents and files belonging to the Client, subject to the Firm's right to retain copies for its own records and any applicable lien rights.
12. No Guarantee of Outcome
While the Firm will exercise its best professional judgment and devote its diligent efforts to the prosecution of the protest on behalf of the Client, no guarantee or assurance is made or implied regarding the outcome of the GAO proceedings. The Client acknowledges that GAO protest outcomes depend on many factors beyond the Firm's control, including the content and completeness of the agency record, the actions and legal positions taken by the agency and the intervenor (Halcyon Defense Systems Inc.), the GAO's interpretation and application of applicable statutes, regulations, and precedent, and the discretionary judgments of the GAO's decision-maker.
The Firm's agreement to undertake this engagement and the Client's agreement to the terms set forth in this Letter are not conditioned upon, and shall not be interpreted as reflecting, any prediction or guarantee of a favorable result. The Client has retained the Firm based on its professional qualifications, experience, and reputation, and not on the basis of any representation regarding the likely outcome of the protest.
13. Governing Law and Dispute Resolution
This engagement letter shall be governed by and construed in accordance with the laws of the District of Columbia, without regard to its conflict of laws principles.
Any dispute, controversy, or claim arising out of or relating to this engagement letter or the Firm's representation of the Client under this Letter, including any dispute regarding the Firm's fees, costs, or the quality of the Firm's services, shall be resolved through binding arbitration administered in Washington, D.C., in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall be conducted before a single arbitrator selected in accordance with such rules. The decision of the arbitrator shall be final and binding on both parties, and judgment on the award may be entered in any court of competent jurisdiction. Each party shall bear its own costs and attorneys' fees in connection with any arbitration proceeding, unless the arbitrator determines that an award of costs or fees is warranted under applicable law.
14. Acceptance
If the foregoing terms and conditions accurately reflect your understanding of the engagement, please sign and date both copies of this Letter in the space provided below and return one signed copy to the undersigned at the Firm's offices at 1750 K Street NW, Suite 1100, Washington, D.C. 20006, or by email to c.merritt@calderwoodharkness.com. The second copy is for the Client's records.
By signing this Letter, the Client confirms that it has read, understands, and agrees to the terms and conditions set forth herein, and that the individual executing this Letter on behalf of the Client has the authority to bind the Client to these terms.
AGREED AND ACCEPTED:
WHITMORE AEROSPACE LLC
By: ________
Name: Marcus J. Whitmore
Title: Chief Executive Officer
Date: ________
We look forward to working with you on this important matter. The Firm is committed to providing Whitmore Aerospace LLC with the highest quality legal representation in this protest and to achieving the best possible result on your behalf. Please do not hesitate to contact me or any member of the engagement team if you have questions about this Letter or any aspect of the engagement.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Claudia Merritt Partner 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-7412
Email: c.merritt@calderwoodharkness.com
cc:
Ian Blackwood, Billing Partner, Calderwood & Harkness LLP Donald R. Stokes, Vice President, Government Contracts, Whitmore Aerospace LLC Patricia "Trish" Langford, Chief Financial Officer, Whitmore Aerospace LLC
Enclosure: Duplicate original for Client signature and return
Timekeeper Category | Blended Hourly Rate | Applicable Personnel
Partners | $695.00 per hour | Claudia Merritt, Ian Blackwood
Of Counsel | $475.00 per hour | Lt. Col. (Ret.) Nathan Yardley
Senior Associates | $385.00 per hour | Megan Zhao
Associates | $315.00 per hour | Alan Burke, Sara Hendricks